## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and SCHASBERGER Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant First Class QUANTRELL L. ANDERSON United States Army, Appellant

ARMY 20170158

Headquarters, U.S. Army Avi ation Center of Excellence Richard J. Henry, Military Judge Lieutenant Colonel Leslie A . Rowley, Staff Judge Advocate

For Appellant: Captain Heather M. Martin, JA; William E. Cassa ra, Esquire (on brief and reply brief).

For Appellee: Colonel Steven P. H aight, JA; Lieutenant Colonel Eric K. Stafford, JA; Major Hannah E. Kaufman, JA ; Captain Allison L. Rowley, JA (on brief).

21 February 2019

--------------------------------- OPINION OF THE COURT

---------------------------------

SCHASBERGER, Judge:

Maltreatment of subordinates is a criminal offense specific to the military. Military leaders hold unique an d far-reaching au thority over ju nior enlisted soldiers. This authority comes with obligations. One such obligation is the requirement to treat subordinate soldiers with a basic level of dignity and re spect. Maltreatment is an offense against su ch dignity and respect, and thus an offens e against th e bedrock of military order and discipline. For thi s reason, co nduct tha t would not be criminal in any civilian context may const itute the offense of maltreatm ent if directed toward subordinate soldiers by military superiors. Such is the case h ere.

A panel with enlisted members sitting as a general court-martia l convicted appellant, contrary to his pleas, of three specifications of ma ltreatment and one specification of abusive sexual contact in v iolation of Article s 93 and 120, Uniform Code of Military Jus tice (UCMJ), 10 U.S.C . §§ 893 and 920. The panel sentenced appellant to a bad-co nduct discharge, thir ty months of confinem ent, forfeiture of all pay and allowances, a nd reduction to the gr ade of E-1. The con vening authorityANDERSON—ARMY 20170158

2 approved the adjudged sentence and credited appellant with four days against his sentence to confinem ent. Appellant’s cas e is now before us und er Article 66, UCMJ. 1

BACKGROUND

Appellant was an Army air traffic controller (ATC) and served a s the facility chief-in-charge of one of the control towers at Fort Rucker. T he tower command structure was, in desc ending order, the AT C Chief, facility chi ef, training supervisor, shift leaders, ATCs, and ATC trainee s. In November 2015, Specialist (SPC) 2 BK was assigned as an ATC train ee with duty in appellant’s tow er.

Over the course of the next few months, appellant and SPC BK ex changed hundreds of text messages. While some of the messages were rel ated to wor k, others were sexually suggesti ve, and some others w ere sexually explici t. Appellant repeatedly asked for p ictures of SPC BK in a sports bra and oth er workout attire. In the messages, appellant offered the flimsy rationale that he wa nted the pictures to evaluate SPC BK’s progress in phy sical fitness. For this purpo rted reason, he directed SPC BK to provide him i mages showing “every nook and c ranny” of her body. Appellant also suggested he might implement “strip train ing.” Appellant explained that in “str ip training,” he woul d quiz SPC BK on pro fessional t opics and, if she answered incorr ectly, she would have to strip for appell ant or, in the alternative, allow him to perfor m oral sex on her . Specialist BK’s responses to these messages varied: some she ignore d; some she responded to in-kin d; and to some she responded by changi ng the subject.

In the very early morning of 1 Ja nuary 2016, appe llant called S PC BK and asked to come over and hang out w ith her at the b arracks. He m ade up a story of being locked out of his own residence. Specialist BK agreed an d said she was hanging out with friends. Appel lant texted, “I’m trying to see all u sexy girls.” Specialist BK texted back, “it’ s me, [SL], [S], and [PC].” App ellant’s response was,

1 In matters raised under United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982), appellant argues the military judge erred in allowing improper sentencing evidence. We find no prejudicial error. We are also s atisfied appellant’ s conviction of abusive sexual contact is legally and factually sufficient. We limit o ur further dis cussion to appellant’s arguments r egarding his convicti ons of mal treatment

.

2 When she first arrived at appella nt’s tower, SPC BK had the ra nk of Private First Class (PFC). At some later date, she achieved the rank of SPC. For consistency, we use her rank of SPC throughout this opinion. At all relevant t imes, SPC BK was a PFC or SPC and therefore consider ed a junior enli sted soldier.ANDERSON—ARMY 20170158

3 “[s]o long as it’s females I’m good lol is that cool.” 3 Of the three oth er soldiers, SL and PC were women and S was a man. Ultimately, SPC BK told app ellant to let her know when he arrived and she and a friend wo uld come out to mee t him. Appellant asked what friend would accompan y SPC BK, to which she responde d, “[her] friend from Bravo Company.”

When appellant arriv ed at the barr acks, SPC BK and PFC PC came out to meet him. At that time, PFC PC did not k now appellant’s rank. Specialist S joined them shortly thereafte r and the four soldiers went to SPC BK’s barracks room.

In SPC BK’s barracks room, SPC BK and PFC P C sat on the bed and appellant sat between them. Ove r the course of the n ext few hours, appel lant repeatedly placed his arm around PFC PC, w hich PFC PC resisted by moving h is arm off of her. Appellant and PFC PC also excha nged text messag es while sitting next to each other. During this time, PFC PC learned that app ellant was a s enior NCO in SPC BK’s tower. Appellant showed PFC PC his identification card.

At one point, PFC PC asked appellant to re move his hand from he r stomach. Appellant responded by shoving hi s hand down PFC PC’s pants and touching her vulva. Private First Class PC gr abbed appellant’s arm, removed his hand from her pants, and got up. Ev entually, SPC BK and PFC PC got appellant to leave, in spite of his protests that he had nowhe re to go.

Some of the texts appellant sent to PFC PC during this time inc luded: “Come on so I can feel u up i n privacy;” “I am wanting to taste you I have never done that b4 with a white female lol;” “ Ok sorry for ha rassing you . . . Why you so mad;” and “Why won’t u let me try. . . answer damn it lol.”

In February 2016, aft er the Super Bowl, a nother junior air tra ffic controller in the unit, SPC SL, engaged in a te xt conversation with appellant regarding the outcome of the game. After a fe w messages were e xchanged on th is topic, appellant asked her if she wante d “to know a real sec ret.” Upon her resp onse of “ok,” appellant sent the message: “Whe n you arrived I wanted to do u. ” 4 Specialist SL reported the incident the next day and told SPC BK and PFC PC t hat she was reporting it. T his led both SPC BK and PFC PC to report appell ant’s misconduct toward them as well.

3 Because the text messages at i ssue are replete with acronyms a nd misspellings, we omit the use of “[sic]” when presenting the content of the text s.

4 Appellant concluded t his message with an “emoji” depicting a m onkey covering its mouth with its hands.ANDERSON—ARMY 20170158

4 LAW AND DISCUSSION

Appellant argues tha t his convicti ons of maltreating SPC BK an d PFC PC are legally and factuall y insufficient.

We review legal and fact ual sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “The t est for legal suffici ency of the evidence is ‘whether, considering the evidence in the light most favorable to the prosecution, a reason able factfinde r could have found all the e ssential elements beyond a reaso nable doubt.’” United States v. Humpherys , 57 M.J. 83, 94 (C.A.A.F. 2002) (quoting United States v. Turner , 25 M.J. 324 (C.M.A. 1987)). The test for factual sufficiency “ is whether, after weighing the evidence in the record of trial and making allowances for not havin g personally observ ed the witnes ses,” the court is “convinced of the accus ed’s guilt beyond a reasonable doubt.” Turner , 25 M.J. at 325.

The Manual for Courts-Martial sets out two elements in Article 93: (1) the victim was subject to the orders of the appellant; and (2) the appellant was cruel toward, oppresse d, or maltreate d the victim. Manual for Courts-Martial, United States (2012 ed.) ( MCM ), pt. IV, ¶ 17.b. Ou r superior court has clarified that to affirm a conviction of maltreatment the evid ence must prove: “( a) the accused knew that the alleged victi m was subject to his . . . orders; (b) th e accused knew that he . . . was making statements or engaging in certain conduct in respe ct to that subordinate; and (c) when viewed objectively under all the circumstances , those statements or actions were unwar ranted, unjustif ied, and unnece ssary for any lawful purpose and caused, or reasonably could have caused, physical o r mental harm or suffering.” United States v. Caldwell , 75 M.J. 276, 281 (C.A.A.F. 2016) (emphasis original).

The discussion in the MCMexplains maltreatment m ust be measured by an objective standard. It further states: “[S]exual harassment m ay constitute this offense. Sexual harassment incl udes influencing, offering to i nfluence, or threatening the career, pay, or j ob of another per son in exchan ge for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature.” MCM , Part IV, ¶ 17.c.(2).

The flipside of giving military superiors extraordinary power o ver their subordinates is that they may be held accountable for abusing t hat power. As discussed below, we conclude appe llant abused his power as an N CO by maltreating junior enlisted soldiers. Appe llant’s abuse of power lacked an y lawful purpose and harmed soldiers subjec t to his orders. By abusing his power in this way, appellant committed the offens e of maltreatment.ANDERSON—ARMY 20170158

5 A. Maltreatment of SPC BK

Appellant argued at trial and on appeal that he ca nnot be guil ty of maltreating SPC BK because she was an activ e and willing part icipant in the messages that constitute the basis of the specification.

Appellant’s argument centers on the defense of consent. To ad dress this argument, we examine three related issues . First, we define co nsent. Next, we establish how consent relates to the elements of maltreatment. Finally, we discuss whether it is a defens e to maltreatment th at an accused held a mistake of fact as to

consent.

First, we note n either the text of the statute, nor the releva nt Rule for CourtsMartial (R.C.M.), list consent as a defense to a charge of malt reatment. See generally , UCMJ art. 93; R.C.M . 916. In fact, the w ord “consent” does n ot even appear in the statute or discu ssions of Article 93. Consent is defined in the UCMJ, albeit in a different punitive article, as “a freely given agre ement to the conduct at issue by a competent person.” UCMJ art. 120(g)(8).

Next, we conclude consent is relevant to, but not dispositive of, allegations of maltreatment. Approach ing the issue from an elemental analysis , we see that consent plays no role in the first two elements of maltreatment identified by our superior court—i.e. whether the accused knew that the alleged v ictim was subject to his orders, or whether the accused knew he was making statement s or engaging in certain conduct towar d that subordin ate. Whether c onsent is re levant to the third element—that when viewed objecti vely, appellant’ s conduct was u nwarranted, unjustified, and unneces sary for any lawful purpose and reasona bly could have caused, physical or me ntal harm or sufferi ng—is more complicate d. On one hand, Caldwell tells us that the statements or actions are to be viewed objec tively, which would lead to the conclusion that a victim’s pers pective is not relevant. See 75 M.J. at 280. On the ot her hand, the st atements or actions need to b e unwarranted, unjustified, and unnecessary for any lawful purpose and must ha ve caused, or reasonably could have caused, physical or me ntal harm or suffer ing.

Can consent transform actions that would otherwise meet the th ird element of Article 93 into actions that do not? We th ink so. In some cir cumstances, consent may alter something with no lawful purpose into something that is lawful. 5 Similarly, consent can alter wheth er it is reasonable to believ e an action will cause harm. Indeed, our superior court has held that consensual sexu al relations between

5 For example, consent may transf orm otherwise assaultive behavi or in recreational striking and grapp ling sports into lawful activity.ANDERSON—ARMY 20170158

6 an NCO and a junior enlisted soldier do no t necessarily constit ute maltreatment. United States v. Fuller , 54 M.J. 107, 11 1-12, (C.A.A.F. 2000) (overruled on other grounds by United States v. Miller , 67 M.J. 385, 389 (C. A.A.F. 2009). In Fuller

, our superior court fo und a maltreatment convic tion was legally insufficient when there was “no evidence” rank disparity played any role in the j unior soldier’s consent and there was no evidence the junior soldier felt other wise offended or harassed by the encounter. Id.

Understanding that consent can affect whether there w as maltreatment, we turn to the que stion of whether a ny alleged consent did affect whether appellant committed maltreatment in this case. Again, assuming that SPC BK consented to the text messages, we ask whether suc h consent imbued appellant’s c onduct with a lawful purpose or made it object ively reasonable to believe SPC BK would suffer no physical or menta l harm as a resu lt. We conclude the answer is , “no.”

Consent does not cure all wrongs . This is especi ally true in situations where consent is obtained th rough exertion of aut hority, or where ove rriding policy interests weigh against allowing leaders to harm their subordin ates even with their subordinates’ consent. In this case, the sexual text messages from a senior NCO facility chief to a junior soldier ATC tr ainee were unjustified and harmful despite any alleged consent by SPC BK. No amount of consent makes the text messages necessary or justified . Further, unlike in Fuller , appellant plainly used his rank as leverage to subject SPC BK to co nduct that could reasonably cau se her harm and suffering notwithstanding consen t. For example, appellant’s “s trip training” plan was patently demeaning to SPC BK and flowed directly from appel lant’s rank and supervisory position. Similarly , appellant’s att empts to convi nce SPC BK that he could be her “boss” and a “FWB” 6 would, at a minimum, lik ely erode SPC BK’s confidence in the saf ety and professionalis m of her workplace. Thus, unlike in Fuller , appellant repeatedly invoked his rank and authority when comm unicating harassing and o ffensive messages to SPC BK.

While we conclude appellant’s cl aim would fail even if there w as actual consent, we do not find SPC BK consented to all the communicati ons at issue. Rather, SPC BK’s testimony is repl ete with evidenc e that her pa rticipation was not always “freely given.” Appellant is correct that there is evid ence of SPC BK’s willing participation in some of the sexual text discussions. The evidence of SPC

6 Specialist BK interpreted “FW B” to be a “friend with benefits .” The “benefit” being sex with appellant.ANDERSON—ARMY 20170158

7 BK’s participation, however, doe s not introduce reasonable doub t as to the harmfulness or the unjustified n ature of appella nt’s communicat ions as a whole. 7

Finally, appellant’s claim that he had a reasonable mistake of fact as to SPC BK’s consent fails for at leas t two reasons. First, as discuss ed above, even if SPC BK did consent to the c ommunications in que stion, consent would not have rendered appellant’s actions harmless o r justified. Seco nd, “if an accu sed’s knowledge or intent is immaterial as to an element, the ignorance or mistake is not a de fense.” R.C.M. 916(j)(1). As discussed above, the elemen t of maltreatm ent that the conduct at issue must be “unwarranted, un justified, and unnecessary for any lawful purpose and caused, or re asonably could have caus ed, physical or mental harm or suffering” is an objective test. Caldwell , 75 M.J. at 281. Appellant’s alleged mistake of fact is, therefore, immaterial to the element at issue.

With the foregoing legal issue s settled, and after weighing the evidence in the record of trial and m aking allowances for not having personally observed the witnesses, we are convinced be yond a reasonable doubt appellant is guilty of the offense of maltreating SPC BK. See Turner , 25 M.J. at 325.

B. Was PFC PC Subject to Appellant’s Orders?

Appellant argues that his conviction of maltreatment of PFC PC is legally and factually insuffi cient. Appellant’s ar gument is not that PFC P C consented to the text messages appellant se nt her, but instead that there was no evid ence that PFC PC was subject to his orders or had a duty to obey him.

For the purpose of our analysi s, we find as fact: First, appe llant was, at the time of the incident, a Sergeant First Class and senior ATC wit h duty as facility chief for one of Fort Rucker’s c ontrol towers. Second, appella nt knew PFC PC was a junior soldier, in the same battalion as he, and was in the s ame company as other junior soldiers who worked in h is facility. Thir d, appellant f irst met PFC PC in the early morning of New Year’s Day, in the parking lot of the barr acks where PFC PC and SPC BK lived. Finally, PFC P C knew that appe llant was an N CO and worked in the tower where SPC BK worked.

7 When a junior enlisted soldi er is communicating with an office r or NCO, it is not appropriate to interpret mere silence by the subordinate as aff irmative consent to offensive behavior by his or her military s uperior. The inhere ntly coerciv e nature of military authority ma y overcome a junior so ldier’s willingness to contradict or object to even clearly objectiona ble conduct by h is or her supe riors.ANDERSON—ARMY 20170158

8 At trial, appellant ar gued that the govern ment had not met its burden of showing that PFC PC kne w appellant was an N CO and whether she k new that she had to follow his or ders. As stated abo ve, however, the knowle dge requirement is not that PFC PC knew she had a duty to follow appellant’s order s; the knowledge requirement is that “the accused knew that the alleged victim was subject to his . . . orders.” Caldwell , 75 M.J. at 281 (emphasi s on “accused” added).

On appeal, appellant’s argument is that app ellant did not know PFC PC was subject to his orders; specifical ly that there wa s no evidence that appellant knew PFC PC was a junior e nlisted soldier. We fi nd that SPC BK’s te xt message to appellant statin g that her friend was i n Bravo Company clearly established PFC PC was a soldier, and in the same battalion as appellant. The tot ality of the circumstances, including PFC PC’ s age, friendship with other ju nior soldiers, and the location of t he meeting in barracks fo r junior enl isted sol diers combine to establish that appellant knew PF C PC was a junior enlisted sold ier.

To establish a violati on of Article 93 , the governm ent must sh ow not only that appellant knew PFC PC was subo rdinate in rank to him, but also that PFC PC was actually subject to appellant’s orders and that appellant knew it. The question then becomes whether PFC PC’ s status as a junior enlisted soldier in appellant’s battalion necessarily makes her subject to appellant’s orders. We conclu de it does.

While a direct supervisory rel ationship between appellant and PFC PC would make this an easy case to resolve, the lac k of such direct supe rvision is not dispositive. The MCM explains the term “subject to his orders” includes “all persons, subject to the code or not, who by reason of some duty are required to obey the lawful orders of the accused, regardless whether the accuse d is in the direct chain of command over the person.” MCM , Part IV, ¶17.c(1) (emphasis added).

We recognize that the question of w ho is “subject to the order s of” whom has been addressed before, most recently in our court by United States v. Keller , 2018 CCA LEXIS 463, *9-14 (Army Ct. C rim. App. 26 Sept. 2018). In Keller , we acknowledged that there is no definitive a nswer in case law or statute to the question of when a junior enlis ted soldier is subj ect to the orders of a superior enlisted soldier. Id. at *11. We observed th ere is a difference between charges of disobeying a commissioned officer under Article 90 and charges of disobeying an NCO under Article 91. Id. at *10-11. As a re sult, we conclude d that, in casesANDERSON—ARMY 20170158

9 alleging maltreatment b y an NCO, it is not e nough to merely sho w that the accused is of higher enlisted rank than the person he or she allegedly maltreated. 8 Id. at *12.

Though not directly on point, we find t he analysis in Keller instructive. 9 To answer whether SPC MR, the victim in Keller , was subject to K eller’s orders we asked: “if SFC Keller had ordered SPC MR to take a po sition on the perimeter, or to direct weapons fire onto a certain target, or had stopped her o n the base a nd told her to make a uniform cor rection, could SPC MR have disobeyed those orders without fear of being cour t-martialed?” Id. at *13. Hav ing concluded that the answer was, “[c]ertainly not, ” we found SPC MR was subj ect to Keller’s orde rs for the purposes of Article 93. 10

Similarly, in this ca se, we must ask wheth er PFC PC had a duty to obey lawful orders from appellan t. We conclude she did.

Private First Class PC was a junior soldier in appellant’s bat talion. She testified that being an ATC trainee was her first duty assignme nt and, at the time of the offense, she had o nly been at Fort Ruc ker a few months. Ba sed on customs of the service in the Army, we are convinced that i f appellant ord ered her to correct a

8 For offenses under Art icle 90, it is enough to show that the o fficer is of higher rank than the accused, whe reas under Artic le 91 the accu sed must be have a duty to obey the order of the NCO. B y extension, we infer enlisted soldiers ge nerally have a duty to obey all lawful orders from o fficers but not necessarily eve ry lawful order from NCOs.

9 We acknowledge t hat two of our sister courts have reached a na rrower reading of the term “subject to the orders.” See United States v. Sullivan , 2016 CCA LEXIS 404 (C.G. Ct. Crim. A pp. 13 Jul. 2016); United States v. Curry , 1991 CMR LEXIS 1144 (N.C.M.R. 31 Jul. 1991). W e find it importa nt, however, t o acknowledge the customs of the services may diffe r as to the expectations of ju nior enlisted members to obey the orders of NCOs. For example, the nat ure of combat for the Navy and Coast Guard is very d ifferent than combat in the Army. The flu idity of groundbased combat may have led us in t he Army to slightly different customs and expectations than ou r maritime-focused br ethren. We do not pre sume to speak to the customs of our sister services . Also, we find both cases from our sister courts factually distinguishable from th e situation in both this case and Keller

.

10 The offenses in Keller arose on a deployment in Kos ovo. The victim was not in the same unit as Keller and their actual interaction was at nig ht in a non-official setting. We fou nd the deployed environme nt was one of the impo rtant factors in analyzing whether SPC MR was subject to Keller’s orders.ANDERSON—ARMY 20170158

10 uniform deficiency, pick up tras h, come to the po sition of para de rest and stop talking, or ta ke a message to her First Sergeant, PFC PC would have been obliged to obey.

The Soldier’s Guide teaches junior enlisted soldiers to:

• Obey the lawful orders of NCOs and officers. • Treat others with dignity and respect. • Complete each task to the very best deg ree possible and not just to standard. • Maintain a military appearance. • Maintain individual physi cal fitness standards and readiness. • Maintain individual equipment and clothing to standard.

Dep’t of Army Training Circular 7- 21.13, Soldier’s Guide [Soldi er’s Guide], para. 4-9 (30 Nov. 2015). 11

The Soldier’s Guide elaborates o n general military authority—as opposed to direct command autho rity—as follows:

[General military authority] originates in oaths of office and enlistment, law, rank structure, traditions, and regulations. This broad-based authority allo ws leaders to take appropriate corrective actions whenever a member of the armed services commits a n act involvin g a breach of good order and disci pline. Army Regulation 600-20, [sic] specifically gives thi s authority to commissioned, warrant, and noncommissioned officers.

Soldier’s Guide, para. 4-11.a(2) . In other words, in the Army, junior enlisted soldiers are trained t o comply with lawful orders from officers and NCOs without inquiring into the bas is for such orders. See also Army Reg. 600-20, Army Command Policy, para. 4-2 (6 Nov. 2014) (“All persons in the mi litary Service are required to strictly obey and pr omptly execute the legal orders of their lawful seniors.”).

11 Training Circular 7-21.13 became effective shortly before the events at issue in this case. The Training Circular replac ed Dep’t of Army Field Manual 7-21-3, The Soldier’s Guide (2 Feb. 2004) [FM 7-21-3 ]. The Field Manual ve rsion of the Soldier’s Guide incl uded almost identical l anguage. FM 7-21-3 at para. 3-21.ANDERSON—ARMY 20170158

11 As set out in the Soldier’s Guide, we find it is a custom of t he service in the Army that junior enlisted soldie rs—meaning the ranks of Private E1 through Specialist—generally have at lea st some duty to ob ey lawful ord ers of NCOs. 12 We acknowledge that this is potentially a bro ad conclusion, but we believe it accurately reflects the actual custom of ser vice in the Arm y. In basic tr aining, we do not instruct our soldier s which NCOs they mus t obey and which they can ignore. In the modern Army, different units often serve toge ther in a single t ask force, or are otherwise comingled. In a deployed settin g, there might be hal f a dozen or more units on a base, all sharing responsibility for accomplishing a mission.

There is an inheren t tension when we requ ire a soldier to obey the lawful orders of higher rank ing persons not in their chain of command. For both NCOs and officers, the Army resolves th is tension by expe cting obedience from junior enlisted soldiers, and expecti ng officers and NCOs t o respect t he chain of command and to exercise discretion when interact ing outside thei r chain of com mand. See Army Doctrine Publication 6-22, Army L eadership, par a. 2 (Aug. 2012)

.

We do not think the conclusion t hat junior enlisted soldiers ha ve a duty to obey the lawful o rders of NCOs—at least f or the purposes of Art icle 93—is an overbroad reading of the law. For the purposes of the offense of maltreatment, the language of the UCMJ does not require the subordinate have a du ty to obey all lawful orders of the superior in o rder to be “subject to the or ders of” that superior. The MCM explains that the subo rdinate need merely have “some duty” to o bey. MCM , Part IV, ¶17.c(1). 13

12 By “generally,” we m ean that the custom of the service we ackn owledge in this opinion is only th e custom in the usual case. Under extraordin ary facts and circumstances, a par ticular junior soldi er might have no duty w hatsoever to obey a particular NCO. Such extraordina ry facts and cir cumstances are simply no t present in appellant’s case. Further, nothing in this opinion should b e construed as lessening the government’s burden to prove every e lement of the offense beyond a reasonable dou bt. The custom o f the service in the Army is a s upporting factor in the government’s case, but it is not wholly dispositive of the element in question.

13 The duty to obey in th e offense of maltrea tment under Article 93 and the duty to obey in the offense of disobeyin g an NCO under Ar ticle 91 are n ot quite the same. The issue in Article 91 turns on a superior NCO gi ving a lawful order and the subordinate having a duty to obey that specific order . In the context of maltreatment, however, the question is whet her the subordinate has some duty to obey the lawful o rders of the accused in the abstract. Soldier s never have a duty to obey unlawful orders.ANDERSON—ARMY 20170158

12 Further, even if all junior enlisted sold iers in the Army did n ot have some duty to obey all NCOs in the Army, there is no question that PF C PC had a duty to obey appellant. This i s not a case w ith soldiers from differen t installations who met off post, or even sol diers close in rank. In this c ase, appell ant was an NCO of the grade E-7 and PFC PC was a junior enlisted soldier of the grade E-3. Appellant and PFC PC met at the barracks, and a ppellant was the supervisor of PFC PC’s friend SPC BK. Appellant wa s an NCO in the same battalion as PFC PC. Under any reasonable readi ng of the facts, PFC PC wa s subject to appellan t’s lawful orders and appellant knew it.

CONCLUSION

Appellant used his rank of Serg eant First Class to subject juni or enlisted soldiers to his patently offens ive sexual overtu res. Leveragin g his rank, appellant counted on the silence, if not t he consent, of the soldiers he maltreated. Ultimately, he obtained neither. We find ap pellant’s resulti ng convictions and sentence are correct in law and fact, a nd should be approved.

The findings of guilty and th e sentence are AFFIRMED.

Senior Judge MULLIGAN an d Judge FEBBO concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR. Clerk of Court MALCOLM H. SQUIRES, JR. Clerk of Court FOR THE COURT: